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					Antitrust Division Manual | November 2012                                                 Chapter II. Statutory Provisions and Guidelines of the Antitrust Division



          Chapter II.                        Statutory Provisions and Guidelines of
                                             the Antitrust Division

             A.  Statutes Enforced by the Antitrust Division ................................................................................... II-3
               1. Sherman Antitrust Act, 15 U.S.C. §§ 1-7 .................................................................................... II-3
               2. Wilson Tariff Act, 15 U.S.C. §§ 8-11 ........................................................................................... II-3
               3. Clayton Act, 15 U.S.C. §§ 12-27.................................................................................................. II-3
               4. Antitrust Civil Process Act, 15 U.S.C. §§ 1311-14....................................................................... II-5
               5. International Antitrust Enforcement Assistance Act of 1994, 15 U.S.C. §§ 6201-12................. II-5
               6. Miscellaneous ............................................................................................................................ II-6
             B. Statutes Used in Criminal Antitrust Investigations and Prosecutions............................................ II-7
               1. Offenses that Arise from Conduct Accompanying a Sherman Act Violation ............................. II-7
                 a. Conspiracy; Aiding and Abetting ............................................................................................ II-7
                 b. Fraud....................................................................................................................................... II-7
                 c. Money Laundering ................................................................................................................. II-7
                 d. Tax Offenses ........................................................................................................................... II-8
               2. Offenses Involving the Integrity of the Investigative Process.................................................... II-8
                 a. Obstruction............................................................................................................................. II-8
                 b. Perjury and False Statements................................................................................................. II-8
                 c. Criminal Contempt ................................................................................................................. II-9
               3. Procedural Statutes.................................................................................................................... II-9
               4. Statutes of Limitation................................................................................................................. II-9
               5. Victim and Witness Rights ....................................................................................................... II-10
                 a. Attorney General Guidelines ................................................................................................ II-10
                 b. Statutes Governing Victims’ Rights and Services for Victims ............................................... II-10
               6. Sentencing................................................................................................................................ II-10
                 a. General Provisions ................................................................................................................ II-10
                 b. Probation .............................................................................................................................. II-11
                 c. Fines ..................................................................................................................................... II-11
                 d. Imprisonment ....................................................................................................................... II-12
                 e. Restitution ............................................................................................................................ II-12
                 f. Miscellaneous ....................................................................................................................... II-12
               7. Debarment ............................................................................................................................... II-13
                 a. 10 U.S.C. § 2408.................................................................................................................... II-13
                 b. 48 C.F.R. § 252.203-7001...................................................................................................... II-13
             C. Statutes Affecting the Competition Advocacy of the Antitrust Division ...................................... II-13
               1. Statutory Antitrust Immunities ................................................................................................ II-13
                 a. Agricultural Immunities ........................................................................................................ II-13
                 b. Export Trade Immunities ...................................................................................................... II-14
                 c. Insurance Immunities ........................................................................................................... II-15
                 d. Labor Immunities.................................................................................................................. II-15
                 e. Fishing Immunities ............................................................................................................... II-15
                 f. Defense Preparedness.......................................................................................................... II-15
                 g. Newspaper Joint Operating Arrangements .......................................................................... II-16
                 h. Professional Sports ............................................................................................................... II-16




U.S. Department of Justice, Antitrust Division                                                                                                                          Page II-1
Antitrust Division Manual | November 2012                                                Chapter II. Statutory Provisions and Guidelines of the Antitrust Division



                    Small Business Joint Ventures .............................................................................................. II-16
                   i.
                    Local Governments............................................................................................................... II-16
                   j.
              2. Statutes Relating to the Regulated Industries Activities of the Antitrust Division .................. II-17
                a. Banking ................................................................................................................................. II-17
                b. Communications................................................................................................................... II-19
                c. Foreign Trade ....................................................................................................................... II-20
                d. Energy ................................................................................................................................... II-21
                e. Transportation...................................................................................................................... II-22
              3. Statutes Relating to Joint Research and Development, Production, and Standards
                  Development ........................................................................................................................... II-23
            D. Antitrust Division Guidelines ........................................................................................................ II-24
              1. Merger Guidelines.................................................................................................................... II-24
              2. Antitrust Guidelines for the Licensing of Intellectual Property ............................................... II-24
              3. Antitrust Enforcement Guidelines for International Operations ............................................. II-25
              4. Statements of Antitrust Enforcement Policy and Analytical Principles Relating to
                  Health Care and Antitrust ........................................................................................................ II-25




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Antitrust Division Manual | November 2012                                 Chapter II. Statutory Provisions and Guidelines of the Antitrust Division



                    A.        Statutes Enforced by the Antitrust Division
                              1.        Sherman Antitrust Act, 15 U.S.C. §§ 1-7

                                                 Sherman Act § 1, 15. U.S.C. § 1
                                                 Trusts, etc., in restraint of trade illegal; penalty

                                                 Sherman Act § 2, 15 U.S.C. § 2
                                                 Monopolizing trade a felony; penalty

                                                 Sherman Act § 3, 15 U.S.C. § 3
                                                 Trusts in Territories or District of Columbia illegal; combination a felony

                                                 Sherman Act § 4, 15 U.S.C. § 4
                                                 Jurisdiction of courts; duty of United States attorneys; procedure

                                                 Sherman Act § 5, 15 U.S.C. § 5
                                                 Bringing in additional parties

                                                 Sherman Act § 6, 15 U.S.C. § 6
                                                 Forfeiture of property in transit

                                                 Sherman Act § 7 (Foreign Trade Antitrust Improvements Act of 1982),
                                                 15 U.S.C. § 6a
                                                 Conduct involving trade or commerce with foreign nations

                                                 Sherman Act § 8, 15 U.S.C. § 7
                                                 “Person” or “persons” defined

                              2.        Wilson Tariff Act, 15 U.S.C. §§ 8-11

                                                 Wilson Tariff Act § 73, 15 U.S.C. § 8
                                                 Trusts in restraint of import trade illegal; penalty

                                                 Wilson Tariff Act § 74, 15 U.S.C. § 9
                                                 Jurisdiction of courts; duty of United States attorneys; procedure

                                                 Wilson Tariff Act § 75, 15 U.S.C. § 10
                                                 Bringing in additional parties

                                                 Wilson Tariff Act § 76, 15 U.S.C. § 11
                                                 Forfeiture of property in transit

                              3.        Clayton Act, 15 U.S.C. §§ 12-27

                                                 Clayton Act § 1, 15 U.S.C. § 12
                                                 Definitions; short title




U.S. Department of Justice, Antitrust Division                                                                                            Page II-3
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                                            Clayton Act § 2, 15 U.S.C. § 13
                                            Discrimination in price, services, or facilities

                                            Clayton Act § 3, 15 U.S.C. § 14
                                            Sale, etc., on agreement not to use goods of competitor

                                            Clayton Act § 4, 15 U.S.C. § 15
                                            Suits by persons injured

                                            Clayton Act § 4A, 15 U.S.C. § 15a
                                            Suits by United States; amount of recovery; prejudgment interest

                                            Clayton Act § 4B, 15 U.S.C. § 15b
                                            Limitation of actions

                                            Clayton Act § 4C, 15 U.S.C. § 15c
                                            Actions by state attorneys general

                                            Clayton Act § 4D, 15 U.S.C. § 15d
                                            Measurement of damages

                                            Clayton Act § 4E, 15 U.S.C. § 15e
                                            Distribution of damages

                                            Clayton Act § 4F, 15 U.S.C. § 15f
                                            Actions by Attorney General

                                            Clayton Act § 4G, 15 U.S.C. § 15g
                                            Definitions

                                            Clayton Act § 4H, 15 U.S.C. § 15h
                                            Applicability of parens patriae actions

                                            Clayton Act § 5 (Tunney Act), 15 U.S.C. § 16
                                            Judgments

                                            Clayton Act § 6, 15 U.S.C. § 17
                                            Antitrust laws not applicable to labor organizations

                                            Clayton Act § 7, 15 U.S.C. § 18
                                            Acquisition by one corporation of stock of another

                                            Clayton Act § 7A (Hart-Scott-Rodino Antitrust Improvements Act of
                                            1976), 15 U.S.C. § 18a
                                            Premerger notification and waiting period

                                            Clayton Act § 8, 15 U.S.C. § 19
                                            Interlocking directorates and officers



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                                                 Clayton Act § 11, 15 U.S.C. § 21
                                                 Enforcement provisions

                                                 Clayton Act § 12, 15 U.S.C. § 22
                                                 District in which to sue corporation

                                                 Clayton Act § 13, 15 U.S.C. § 23
                                                 Suits by United States; subpoenas for witnesses

                                                 Clayton Act § 14, 15 U.S.C. § 24
                                                 Liability of directors and agents of corporation

                                                 Clayton Act § 15, 15 U.S.C. § 25
                                                 Restraining violations; procedure

                                                 Clayton Act § 16, 15 U.S.C. § 26
                                                 Injunctive relief for private parties; exception; costs

                                                 Clayton Act § 26 (Gasohol Competition Act of 1980), 15 U.S.C. § 26a
                                                 Restrictions on the purchase of gasohol and synthetic motor fuel

                                                 Clayton Act § 27, 15 U.S.C. § 27
                                                 Effect of partial invalidity

                              4.        Antitrust Civil Process Act, 15 U.S.C. §§ 1311-14

                                                 Antitrust Civil Process Act § 2, 15 U.S.C. § 1311
                                                 Definitions

                                                 Antitrust Civil Process Act § 3, 15 U.S.C. § 1312
                                                 Civil investigative demands

                                                 Antitrust Civil Process Act § 4, 15 U.S.C. § 1313
                                                 Custodian of documents, answers and transcripts

                                                 Antitrust Civil Process Act § 5, 15 U.S.C. § 1314
                                                 Judicial proceedings

                              5.        International Antitrust Enforcement Assistance Act of 1994,
                                        15 U.S.C. §§ 6201-12

                                                 International Antitrust Enforcement Assistance Act § 2,
                                                 15 U.S.C. § 6201
                                                 Disclosure to a foreign antitrust authority of antitrust evidence

                                                 International Antitrust Enforcement Assistance Act § 3,
                                                 15 U.S.C. § 6202
                                                 Investigations to assist foreign antitrust authority in obtaining antitrust
                                                 evidence



U.S. Department of Justice, Antitrust Division                                                                                           Page II-5
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                                            International Antitrust Enforcement Assistance Act § 4,
                                            15 U.S.C. § 6203
                                            Jurisdiction of district courts of United States

                                            International Antitrust Enforcement Assistance Act § 5,
                                            15 U.S.C. § 6204
                                            Limitations on authority

                                            International Antitrust Enforcement Assistance Act § 6,
                                            15 U.S.C. § 6205
                                            Exception to certain disclosure restrictions

                                            International Antitrust Enforcement Assistance Act § 7,
                                            15 U.S.C. § 6206
                                            Publication requirements applicable to antitrust mutual assistance
                                            agreements

                                            International Antitrust Enforcement Assistance Act § 8,
                                            15 U.S.C. § 6207
                                            Conditions on use of antitrust mutual assistance agreements

                                            International Antitrust Enforcement Assistance Act § 9,
                                            15 U.S.C. § 6208
                                            Limitations on judicial review

                                            International Antitrust Enforcement Assistance Act § 10,
                                            15 U.S.C. § 6209
                                            Preservation of existing authority

                                            International Antitrust Enforcement Assistance Act § 11,
                                            15 U.S.C. § 6210
                                            Report to Congress

                                            International Antitrust Enforcement Assistance Act § 12,
                                            15 U.S.C. § 6211
                                            Definitions

                                            International Antitrust Enforcement Assistance Act § 13,
                                            15 U.S.C. § 6212
                                            Authority to receive reimbursement

                           6.       Miscellaneous

                                            15 U.S.C. § 29
                                            Appeals [U.S. is civil complainant, equitable relief sought]

                                            15 U.S.C. § 1927
                                            Counsel’s Liability for Excessive Costs



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Antitrust Division Manual | November 2012                               Chapter II. Statutory Provisions and Guidelines of the Antitrust Division



                    B.        Statutes Used in Criminal Antitrust Investigations and Prosecutions
                                                 In addition to the Division’s criminal enforcement activities under the
                                                 Sherman Act, the Division investigates and prosecutes offenses that
                                                 arise from conduct accompanying antitrust violations or otherwise
                                                 impact the competitive process, as well as offenses that involve the
                                                 integrity of the investigative process. The Division also uses statutes
                                                 governing procedures, victim and witness rights, sentencing, and
                                                 debarment.

                              1.        Offenses that Arise from Conduct Accompanying a Sherman
                                        Act Violation

                                        a.       Conspiracy; Aiding and Abetting

                                                 18 U.S.C. § 2
                                                 Principals [aiding and abetting]

                                                 18 U.S.C. § 371
                                                 Conspiracy to commit offense or defraud the United States

                                                 18 U.S.C. § 1349
                                                 Attempt and conspiracy [mail and wire fraud]

                                        b.       Fraud

                                                 18 U.S.C. § 201
                                                 Bribery of public officials and witnesses

                                                 18 U.S.C. § 666
                                                 Theft or bribery concerning programs receiving Federal funds

                                                 18 U.S.C. § 1001
                                                 Statements or entries generally [false statements]

                                                 18 U.S.C. § 1341
                                                 Frauds and swindles [mail fraud]

                                                 18 U.S.C. § 1343
                                                 Fraud by wire, radio, or television [wire fraud]

                                        c.       Money Laundering

                                                 18 U.S.C. § 1952
                                                 Interstate and foreign travel or transportation in aid of racketeering
                                                 enterprise

                                                 18 U.S.C. § 1956
                                                 Laundering of monetary instruments




U.S. Department of Justice, Antitrust Division                                                                                          Page II-7
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                                            18 U.S.C. § 1957
                                            Engaging in monetary transactions in property derived from specified
                                            unlawful activity

                                    d.      Tax Offenses

                                            26 U.S.C. § 7201
                                            Attempt to evade or defeat tax

                                            26 U.S.C. § 7206
                                            Fraud and false statements

                           2.       Offenses Involving the Integrity of the Investigative Process

                                    a.      Obstruction

                                            18 U.S.C. § 1503
                                            Influencing or injuring officer or juror generally

                                            18 U.S.C. § 1505
                                            Obstruction of proceedings before departments, agencies, and
                                            committees. This statute is used when there is obstruction of
                                            proceedings under the Antitrust Civil Process Act.

                                            18 U.S.C. § 1509
                                            Obstruction of court orders

                                            18 U.S.C. § 1510
                                            Obstruction of criminal investigations

                                            18 U.S.C. § 1512
                                            Tampering with a witness, victim, or an informant

                                            18 U.S.C. § 1519
                                            Destruction, alteration, or falsification of records in Federal
                                            investigations and bankruptcy proceedings

                                    b.      Perjury and False Statements

                                            18 U.S.C. § 1621
                                            Perjury generally

                                            18 U.S.C. § 1622
                                            Subornation of perjury

                                            18 U.S.C. § 1623
                                            False declarations before grand jury or court




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Antitrust Division Manual | November 2012                               Chapter II. Statutory Provisions and Guidelines of the Antitrust Division



                                        c.       Criminal Contempt

                                                 18 U.S.C. § 402
                                                 Contempts constituting crimes

                                                 18 U.S.C. § 3691
                                                 Jury trial of criminal contempts

                                                 Fed. R. Crim. P. 42
                                                 Criminal contempt

                              3.        Procedural Statutes

                                                 18 U.S.C. § 3143
                                                 Release or detention of a defendant pending sentence or appeal

                                                 Speedy Trial Act of 1974, 18 U.S.C. § 3161-3174

                                                 Jencks Act, 18 U.S.C. § 3500
                                                 Demands for production of statements and reports of witnesses

                                                 18 U.S.C. § 6001-6005
                                                 Immunity of witnesses

                              4.        Statutes of Limitation

                                                 18 U.S.C. § 3282
                                                 Offenses not capital

                                                 18 U.S.C. § 3285
                                                 Criminal contempt

                                                 18 U.S.C. § 3287
                                                 Wartime suspension of limitations

                                                 18 U.S.C. § 3288
                                                 Indictments and information dismissed after period of limitations

                                                 18 U.S.C. § 3289
                                                 Indictments and information dismissed before period of limitations

                                                 18 U.S.C. § 3292
                                                 Suspension of limitations to permit United States to obtain foreign
                                                 evidence




U.S. Department of Justice, Antitrust Division                                                                                          Page II-9
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                           5.       Victim and Witness Rights

                                    a.      Attorney General Guidelines
                                            The Attorney General, in accordance with the requirements of the
                                            Victim and Witness Protection Act of 1982, the Crime Control Act of
                                            1990, the Violent Crime Control and Law Enforcement Act of 1994, the
                                            Antiterrorism and Effective Death Penalty Act of 1996, the Victims
                                            Rights Clarification Act of 1997, and the Justice for All Act of 2004, has
                                            promulgated Attorney General Guidelines for Victim and Witness
                                            Assistance (AG Guidelines) to establish procedures to be followed by the
                                            Federal criminal justice system in responding to the needs of crime
                                            victims and witnesses. The AG Guidelines serve as a primary resource
                                            for Department of Justice agencies, including the Antitrust Division, in
                                            the treatment and protection of victims and witnesses of Federal crimes
                                            under these acts. In addition, the Division has published a Victim
                                            Witness Handbook.

                                    b.      Statutes Governing Victims’ Rights and Services for Victims

                                            18 U.S.C. § 3771
                                            Crime victims’ rights

                                            42 U.S.C. § 10607
                                            Services to victims

                           6.       Sentencing
                                            Attorneys should be familiar with the statutory provisions governing
                                            sentencing and the Federal Sentencing Guidelines (“U.S.S.G.”), which
                                            should be read together with the statutory provisions. Attorneys should
                                            be familiar with the Sentencing Guidelines in their entirety, as many
                                            provisions are interrelated. Useful sentencing sections include:

                                    a.      General Provisions

                                            18 U.S.C. § 3013
                                            Special assessment on convicted persons

                                            18 U.S.C. § 3551
                                            Authorized sentences

                                            18 U.S.C. § 3552; Fed. R. Crim. P. 32(d)
                                            Presentence reports

                                            18 U.S.C. § 3553
                                            Imposition of a sentence

                                            18 U.S.C. § 3554
                                            Order of criminal forfeiture



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                                                 18 U.S.C. § 3555
                                                 Order of notice to victims

                                                 18 U.S.C. § 3556
                                                 Order of restitution

                                                 18 U.S.C. § 3557
                                                 Review of a sentence

                                                 18 U.S.C. § 3558
                                                 Implementation of a sentence

                                                 18 U.S.C. § 3559
                                                 Sentencing classification of offenses

                                        b.       Probation

                                                 18 U.S.C. § 3561
                                                 Sentence of probation

                                                 18 U.S.C. § 3562
                                                 Imposition of a sentence of probation

                                                 18 U.S.C. § 3563
                                                 Conditions of probation

                                                 18 U.S.C. § 3564
                                                 Running of a term of probation

                                                 18 U.S.C. § 3565
                                                 Revocation of probation

                                                 18 U.S.C. § 3566, U.S.S.G. §§ 5B1.1-5B1.3, 8D1.1-8D1.4
                                                 Implementation of a sentence of probation

                                        c.       Fines

                                                 18 U.S.C. § 3571
                                                 Sentence of fine

                                                 18 U.S.C. § 3572, U.S.S.G. §§ 2R.1.1, 5K1.1, 8C2.4-8C2.8, 8C3.2, 8C3.3,
                                                 8C4.1
                                                 Imposition of a sentence of fine and related matters

                                                 18 U.S.C. § 3573
                                                 Petition of the Government for modification or remission




U.S. Department of Justice, Antitrust Division                                                                                         Page II-11
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                                            18 U.S.C. § 3574
                                            Implementation of a sentence of fine

                                            18 U.S.C. § 3612
                                            Collection of fine

                                    d.      Imprisonment

                                            18 U.S.C. § 3581
                                            Sentence of imprisonment

                                            18 U.S.C. § 3582
                                            Imposition of a sentence of imprisonment

                                            18 U.S.C. § 3583, U.S.S.G. §§ 5D1.1-5D1.3
                                            Inclusion of term of supervised release after imprisonment

                                            18 U.S.C. § 3584
                                            Multiple sentences of imprisonment

                                            18 U.S.C. § 3585, U.S.S.G. §§ 2R1.1, 3B1.1, 3D1.4, 3E1.1, 5C1.1, 5K1.1
                                            Calculation of a term of imprisonment

                                            18 U.S.C. § 3586
                                            Implementation of a sentence of imprisonment

                                    e.      Restitution

                                            18 U.S.C. § 3556, U.S.S.G. §§ 5E1.1, 8B1.1
                                            Order of restitution

                                            18 U.S.C. § 3612
                                            Collection of unpaid fine or restitution

                                            18 U.S.C. § 3663
                                            Discretionary restitution

                                            18 U.S.C. § 3663A
                                            Mandatory restitution to victims of certain crimes

                                            18 U.S.C. § 3664
                                            Procedure for issuance and enforcement of restitution order

                                    f.      Miscellaneous

                                            18 U.S.C. § 3661
                                            Use of information for sentencing




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                                                 18 U.S.C. § 3673
                                                 Definitions for sentencing provisions

                                                 18 U.S.C. § 3731
                                                 Appeal by United States

                                                 18 U.S.C. § 3742
                                                 Review of a sentence (appeal by the defendant or the United States)

                              7.        Debarment
                                                 The Division is required to report to the Defense Procurement Fraud
                                                 Debarment Clearinghouse within the Department of Justice individual
                                                 defendants qualifying for debarment under 10 U.S.C. § 2408. The
                                                 defendants are also listed in the debarment database known as the
                                                 System for Award Management, www.sam.gov.

                                        a.       10 U.S.C. § 2408
                                                 Prohibition on persons convicted of defense-contract related felonies
                                                 and related criminal penalty on defense contractors

                                        b.       48 C.F.R. § 252.203-7001
                                                 Prohibition on persons convicted of fraud or other defense-contract-
                                                 related felonies

                    C.        Statutes Affecting the Competition Advocacy of the Antitrust
                              Division
                              1.        Statutory Antitrust Immunities

                                        a.       Agricultural Immunities
                                                 Clayton Act § 6, 15 U.S.C. § 17. Section 6 of the Clayton Act permits,
                                                 among other things, the operation of agricultural or horticultural mutual
                                                 assistance organizations when such organizations do not have capital
                                                 stock or are not conducted for profit.
                                                 Capper-Volstead Agricultural Producers’ Associations Act,
                                                 7 U.S.C. §§ 291-92. This act allows persons engaged in the production of
                                                 agricultural products to act together for the purpose of “collectively
                                                 processing, preparing for market, handling, and marketing” their
                                                 products and permits cooperatives to have “market agencies in
                                                 common.” The act also authorizes the Secretary of Agriculture to
                                                 proceed against cooperatives that monopolize or restrain commerce to
                                                 such an extent that the price of an agricultural commodity is “unduly
                                                 enhanced.”
                                                 Capper-Volstead Cooperative Marketing Act of 1926,
                                                 7 U.S.C. §§ 451-457. This act authorizes agricultural producers and




U.S. Department of Justice, Antitrust Division                                                                                       Page II-13
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                                            associations to acquire and exchange past, present, and prospective
                                            pricing, production, and marketing data.
                                            Agricultural Marketing Agreement Act of 1937,
                                            7 U.S.C. §§ 601-627, 671-674. Under 7 U.S.C. § 608b, the Secretary of
                                            Agriculture is authorized to enter into marketing agreements with
                                            producers and processors of agricultural commodities. These
                                            arrangements are specifically exempted from the application of the
                                            antitrust laws. The Secretary may also enter into marketing orders,
                                            except for milk, that control the amount of an agricultural product
                                            reaching the market and thus serve to enhance the price. Milk
                                            marketing orders differ from other orders since they provide a
                                            mechanism for the establishment of a minimum price for milk rather
                                            than establishing levels of maximum output.

                                    b.      Export Trade Immunities
                                            Export Trading Company Act of 1982, 15 U.S.C. §§ 4001-4003. This act
                                            provides limited antitrust immunity for export trade, export trade
                                            activities, and methods of operation specified in a certificate of review
                                            issued by the Secretary of Commerce with the concurrence of the
                                            Attorney General. To obtain the certificate a person must show that the
                                            proposed activities:
                                            •   Will neither substantially lessen competition or restrain trade in the
                                                United States nor substantially restrain the export trade of any
                                                competitor of the applicant.
                                            •   Will not unreasonably enhance, stabilize, or depress prices in the
                                                United States of the class of goods or services exported by the
                                                applicant.
                                            •   Will not constitute unfair methods of competition against
                                                competitors engaged in the export of the class of goods or services
                                                exported by the applicant.
                                            •   Will not include any act that may reasonably be expected to result
                                                in the sale for consumption or resale in the United States of the
                                                goods or services exported by the applicant.
                                            •   A certificate may be revoked or modified by the Secretary of
                                                Commerce if the Secretary or the Attorney General determines that
                                                the applicant’s activities no longer comply with these standards.
                                                While a certificate is in effect, the persons named in it are immune
                                                from Federal or state antitrust liability with respect to the conduct
                                                specified. However, parties injured by the conduct may sue for
                                                actual damages on the ground that the conduct does not comply
                                                with the statutory criteria. In addition, the Attorney General may
                                                sue under Section 15 of the Clayton Act “to enjoin conduct
                                                threatening a clear and irreparable harm to the national interest.”




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                                                 Webb-Pomerene Act (Export Trade Act) 15 U.S.C. §§ 61-66. This act
                                                 provides antitrust immunity for the formation and operation of
                                                 associations of otherwise competing businesses to engage in collective
                                                 export sales. The immunity conferred by this statute does not extend to
                                                 actions that have an anticompetitive effect within the United States or
                                                 that injure domestic competitors of members of export associations.

                                        c.       Insurance Immunities
                                                 McCarran-Ferguson Act, 15 U.S.C. §§ 1011-15. This act exempts from
                                                 the antitrust laws the “business of insurance” to the extent “regulated
                                                 by state law.” The Sherman Act continues to be applicable to all
                                                 agreements or acts by those engaged in the “business of insurance” to
                                                 boycott, coerce, or intimidate.

                                        d.       Labor Immunities
                                                 Clayton Act § 6, 15 U.S.C. § 17. This statute provides that the labor of a
                                                 human being is not a commodity or article of commerce, and permits
                                                 labor organizations to carry out their legitimate objectives.
                                                 Clayton Act § 20, 29 U.S.C. § 52. Generally, this statute immunizes
                                                 collective activity by employees relating to a dispute concerning terms
                                                 or conditions of employment.
                                                 Norris-LaGuardia Act of 1932, 29 U.S.C. §§ 101-115. This act provides
                                                 that courts in the United States do not have jurisdiction to issue
                                                 restraining orders or injunctions against certain union activities on the
                                                 basis that such activities constitute an unlawful combination or
                                                 conspiracy under the antitrust laws.

                                        e.       Fishing Immunities
                                                 Fishermen’s Collective Marketing Act, 15 U.S.C. §§ 521-522. This act
                                                 permits persons engaged in the fisheries industry as fishermen to act
                                                 together for the purpose of catching, producing, preparing for market,
                                                 processing, handling, and marketing their products. This immunity is
                                                 patterned after the Capper-Volstead Act. This act also provides for the
                                                 enforcement by the Department of Justice of cease and desist orders
                                                 issued by the Secretary of the Interior if interstate or foreign commerce
                                                 is restrained or monopolized by any association of persons engaged in
                                                 the fisheries industry as fishermen.

                                        f.       Defense Preparedness
                                                 Defense Production Act of 1950, 50 U.S.C. app. §§ 2061-2171. Under
                                                 50 U.S.C. app. § 2158, the President or his delegate, in conjunction with
                                                 the Attorney General, may approve voluntary agreements among
                                                 various industry groups for the development of preparedness programs
                                                 to meet potential national emergencies. Persons participating in such an
                                                 agreement are immunized from the operation of the antitrust laws with




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                                            respect to good faith activities undertaken to fulfill their responsibilities
                                            under the agreement.

                                    g.      Newspaper Joint Operating Arrangements
                                            Newspaper Preservation Act of 1970, 15 U.S.C. §§ 1801-04. This act
                                            provides a limited exemption for join operating arrangements between
                                            newspapers to share production facilities and combine their commercial
                                            operations. The newspapers are required to retain separate editorial
                                            and reporting staffs and to determine their editorial policies
                                            independently.

                                    h.      Professional Sports
                                            Sports Broadcasting Act of 1961, 15 U.S.C. §§ 1291-95. This act
                                            exempts, with some limitations, agreements among professional
                                            football, baseball, basketball, and hockey teams to negotiate jointly,
                                            through their leagues, for the sale of television rights.

                                    i.      Small Business Joint Ventures
                                            Small Business Act, 15 U.S.C. §§ 631-657f. Section 638(d)(2) authorizes
                                            the Small Business Administrator, after consultation with the Attorney
                                            General and Chairman of the FTC, and with the prior written approval of
                                            the Attorney General, to approve an agreement between small business
                                            firms providing for a joint program of research and development if the
                                            Administrator finds that the program will maintain and strengthen the
                                            free enterprise system and the national economy. Under Section
                                            638(d)(3), the Administrator’s approval confers antitrust immunity on
                                            acts and omissions pursuant to and within the scope of the agreement
                                            or program as approved. The Administrator or the Attorney General
                                            may prospectively withdraw or modify any such approval.
                                            Section 640(b) confers antitrust immunity on joint actions undertaken
                                            by small business firms in response to a request by the President
                                            pursuant to a voluntary agreement or program approved by the
                                            President to further the objectives of the Small Business Act, if found by
                                            the President to be in the public interest as contributing to the national
                                            defense. The President is to furnish a copy of any such request to the
                                            Attorney General and the Chairman of the FTC. Section 640(c) permits
                                            the President to delegate the authority to make such requests to an
                                            official appointed with Senate confirmation, in which case the official is
                                            required to obtain the Attorney General’s approval before making any
                                            such request. The request or Attorney General’s approval, if required,
                                            may be withdrawn.

                                    j.      Local Governments
                                            Local Government Antitrust Act of 1984, 15 U.S.C. §§ 34-36. Under 15
                                            U.S.C. 35, local governments and their officials and employees acting in
                                            official capacities have antitrust immunity with respect to actions
                                            brought under 15 U.S.C. § 15 for damages, fees, or costs. The act



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                                                 provides similar immunity for claims directed at a person, as that term is
                                                 defined in 15 U.S.C. § 12, based on an official action directed by a local
                                                 government. See 15 U.S.C. § 36, 15 U.S.C. § 34.

                              2.        Statutes Relating to the Regulated Industries Activities of the
                                        Antitrust Division
                                                 The following statutes have a direct impact upon the regulatory
                                                 activities of the Division. Although this list is not exhaustive, it indicates
                                                 the major areas of Federal regulation in certain industries with which
                                                 the Division is especially concerned.

                                        a.       Banking
                                                 Bank Merger Act, 12 U.S.C. § 1828(c). This act creates a special
                                                 procedure under which bank merger reviews are conducted by the
                                                 appropriate banking agency—the Comptroller of Currency, the Board of
                                                 Governors of the Federal Reserve System, the Federal Deposit Insurance
                                                 Corporation, or the Office of Thrift Supervision. All merger applications
                                                 involving a bank or savings association (including an application to
                                                 acquire assets or assume liabilities) are to be forwarded to the Attorney
                                                 General, who is to report to the banking agency on the proposed
                                                 merger’s competitive effects within 30 calendar days of the date of the
                                                 agency’s request. The banking agency must wait for the 30-day period
                                                 to expire, or until it receives the Attorney General’s report, before it
                                                 acts on the application. The banking agency can shorten this pre-
                                                 approval waiting period to 10 days by notifying the Attorney General
                                                 that an emergency exists requiring expeditious action; and the banking
                                                 agency may dispense with the report and act immediately if necessary
                                                 in order to prevent the probable failure of one of the banks or savings
                                                 associations involved. In any case, the banking agency must notify the
                                                 Attorney General immediately when it approves a merger.
                                                 This act also imposes a post-approval waiting period, requiring that the
                                                 bank merger not be consummated before the 30th calendar day after
                                                 the date of approval by the appropriate banking agency. This 30-day
                                                 waiting period may be shortened to a period of not less than 15 days,
                                                 with the concurrence of the Attorney General, if the banking agency has
                                                 not received an adverse competitive effects report from the Attorney
                                                 General; may be shortened to 5 days if the banking agency has notified
                                                 the Attorney General that an emergency exists requiring expeditious
                                                 action; and may be dispensed with entirely if the banking agency has
                                                 determined that it must act immediately to prevent the probable failure
                                                 of one of the banks or savings associations involved and therefore
                                                 dispensed with the pre-approval reports on competitive effects. If a suit
                                                 under the antitrust laws is not instituted during the 30-day (or
                                                 shortened) period, the merger may be consummated and thereafter will
                                                 be exempt from antitrust challenge except under Section 2 of the
                                                 Sherman Act. (This means that a merger approved immediately to




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                                            prevent a probable bank failure may not be subject to antitrust
                                            challenge at all.)
                                            If a suit is instituted during the applicable period, it results in an
                                            automatic stay of the merger. In any such suit, there is a special defense
                                            that allows an anticompetitive merger to go forward if the court finds
                                            that its anticompetitive effects will be clearly outweighed by the
                                            merged entity’s ability to meet the convenience and needs of the
                                            community to be served.
                                            Mergers requiring advance competitive review and approval under the
                                            Bank Merger Act are exempt under Section 7A(c)(7) from the reporting
                                            and waiting period requirements of the HSR statute.
                                            Bank Holding Company Act of 1956, 12 U.S.C. §§ 1841-50, 1971-78.
                                            Section 3 of this act, 12 U.S.C. § 1842, sets forth the same substantive
                                            competition standards for the Federal Reserve Board to apply in
                                            reviewing applications by bank holding companies to acquire other bank
                                            holding companies, banks, or bank assets as those set forth in the Bank
                                            Merger Act. While the pre-approval waiting period does not involve a
                                            statutorily required notice to the Attorney General, in practice the
                                            Board does notify the Attorney General, and the Attorney General
                                            furnishes the Board with a report on competitive effects. Similar
                                            standards apply to Section 3 applications as in the Bank Merger Act
                                            regarding notice to the Attorney General of any approval, the post-
                                            approval waiting period, antitrust immunity once that period has
                                            expired, the automatic stay, and the convenience and needs defense. As
                                            with the Bank Merger Act, an acquisition, or portion of an acquisition,
                                            that is subject to banking agency review under Section 3 is exempt from
                                            the HSR reporting and waiting period requirements.
                                            Section 4 of the Bank Holding Company Act, 12 U.S.C. § 1843, governs
                                            acquisitions of a nonbank or thrift institution by a bank holding
                                            company. There is no required notice to the Attorney General.
                                            Generally, a Section 4 acquisition is not subject to Board approval, and is
                                            subject to HSR reporting and waiting period requirements; but if it is a
                                            type of acquisition subject to Board approval (or disapproval) under
                                            Section 4, it is exempt from HSR requirements if copies of all
                                            information and documents filed with the Board are also filed with the
                                            Division and the FTC at least 30 days prior to consummation of the
                                            acquisition, in accordance with Section 7A(c)(8) of the Clayton Act.
                                            Section 4 acquisitions are subject to the ordinary operation of the
                                            antitrust laws.
                                            The Gramm-Leach-Bliley Act (Financial Services Modernization Act of
                                            1999) amended the Bank Holding Company Act to create a new
                                            “financial holding company” under Section 4(k), permitted to engage in
                                            certain financial activities, including insurance and securities
                                            underwriting and insurance agency activities, that were previously off-
                                            limits to bank holding companies. At that time, Sections 7A(c)(7) and (8)
                                            were amended to make clear that if a portion of an acquisition falls



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                                                 under Section 4(k) and is not subject to Board approval under Section 3
                                                 or Section 4, it is not exempt from HSR reporting and waiting period
                                                 requirements. Like other Section 4 acquisitions, Section 4(k) acquisitions
                                                 are subject to the ordinary operation of the antitrust laws.
                                                 The Bank Holding Company Act also prohibits certain tying
                                                 arrangements by banks, as well as certain exclusive dealing agreements
                                                 with customers. 12 U.S.C. §§ 1971-78. These prohibitions are in addition
                                                 to, and do not supersede, the antitrust laws.

                                        b.       Communications
                                                 Communications Act of 1934, as amended by the Telecommunications
                                                 Act of 1996, 47 U.S.C. §§ 151-161, 201-231, 251-261, 271-276, 301-339,
                                                 351-363, 381-386, 390-399b, 401-416, 501-510, 521-522, 531-537,
                                                 541-549, 551-561, 571-573, 601, 604-615b. This act established the
                                                 Federal Communications Commission (FCC), which is responsible for
                                                 regulating “interstate and foreign commerce in communication by wire
                                                 and radio.” 47 U.S.C. § 151. The FCC’s authority encompasses
                                                 telecommunications common carriers, radio and television
                                                 broadcasting, and cable communications. Under Section 402(a) of the
                                                 act, and 28 U.S.C. §§ 2341-2351, the United States, represented by the
                                                 Antitrust Division, is automatically a party respondent, separate from
                                                 the FCC, in proceedings for review of most FCC orders (except licensing
                                                 and license transfer orders) in the courts of appeals.
                                                 The stated purpose of the Telecommunications Act of 1996 was “to
                                                 promote competition and reduce regulation in order to secure lower
                                                 prices and higher quality services for American telecommunications
                                                 consumers and encourage the rapid deployment of new
                                                 telecommunications technologies.” To that end, the 1996 act provided
                                                 for opening local telephone markets to competition and repealed
                                                 provisions of the Communications Act that had provided express
                                                 antitrust exemptions for telephone company mergers approved by the
                                                 FCC. The 1996 act also included an express antitrust savings clause,
                                                 Section 601(b)(1), 47 U.S.C. § 152 note, making clear that, in all other
                                                 respects, the 1996 act does not “modify, impair, or supersede the
                                                 applicability of any of the antitrust laws.”
                                                 Cable Communications Policy Act of 1984, as amended by the 1996
                                                 Telecommunications Act, 47 U.S.C. §§ 521-573. These acts generally
                                                 reduced the level of regulation in the cable industry. The FCC was given
                                                 authority to approve transfers of cable television relay service licenses.
                                                 Although the parties are not immunized from challenge under the
                                                 antitrust laws, governmental entities are immune from claims for
                                                 damages under any Federal law for conduct related to the regulation of
                                                 cable services after October 2, 1992.




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                                    c.      Foreign Trade
                                            Tariff Act of 1930 § 1337, 19 U.S.C. § 1337. Under this statute, the
                                            International Trade Commission (ITC) evaluates claims of unfair trade
                                            practices involving the importation of articles into the United States
                                            (primarily with regard to intellectual property rights). The ITC is required
                                            to seek the Department’s advice before making a final determination.
                                            The Department may also participate in the interagency group that
                                            advises whether to disapprove the ITC’s findings and proposed relief.
                                            Trade Act of 1974 § 201, 19 U.S.C. § 2252, allows American businesses
                                            claiming serious injury substantially caused by increased imports to
                                            petition the ITC for tariff and quota relief under the so-called “escape
                                            clause.” Once the ITC makes a determination of whether such injury
                                            occurred and formulates appropriate relief, the Department may
                                            participate in the interagency committee that advises the President
                                            whether to institute or modify the import relief urged by the ITC.
                                            Trade Act of 1974 § 301, 19 U.S.C. § 2411, provides that the President
                                            may take action, including restricting imports, to enforce rights of the
                                            United States under any trade agreement or to respond to unfair
                                            practices of foreign governments that restrict U.S. commerce.
                                            Interested parties may initiate such actions through petitions to the U.S.
                                            Trade Representative. The Department participates in the interagency
                                            committee that makes recommendations to the President on what
                                            actions, if any, should be taken.
                                            Trade Act of 1974 § 406, 19 U.S.C. § 2436, provides that businesses
                                            claiming injury relating to imports from communist countries may also
                                            petition the ITC under the so-called “market disruption statute.” The
                                            Department may participate in the interagency committee that advises
                                            the President whether to institute or modify the import relief urged by
                                            the ITC.
                                            Trade Expansion Act of 1962 § 232, 19 U.S.C. § 1862, requires the
                                            President to take action to control any imports that the President and
                                            the Secretary of Commerce determine are threatening to impair
                                            national security because of their impact on defense-related domestic
                                            producers. Interested parties may initiate these actions through
                                            petitions to the Secretary of Commerce. The Department may
                                            participate in the interagency committee that makes recommendations
                                            to the President on what actions, if any, should be taken.
                                            Countervailing Duties Imposed. 19 U.S.C. § 1671 provides that
                                            American manufacturers, producers, wholesalers, unions, and trade
                                            associations may petition for the imposition of offsetting duties on
                                            subsidized foreign imports. Duties will be imposed if the Department of
                                            Commerce determines that a foreign country is subsidizing the foreign
                                            import and, in almost all cases, if the ITC determines that a domestic
                                            industry is materially injured or threatened with injury by the foreign
                                            merchandise. Although the statute permits the Division to apply to



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                                                 appear as a party in proceedings before the ITC, the Division has not
                                                 utilized this option for many years. On occasion, the Division has
                                                 provided informal advice to the Department of Commerce on request.
                                                 Imposition of Antidumping Duties. 19 U.S.C. § 1673, provides that
                                                 antidumping duties shall be imposed on foreign merchandise that is
                                                 being, or is likely to be, sold in the United States at “less than its fair
                                                 value,” if the Commerce Department determines that such sales have
                                                 occurred or will occur and the ITC determines that a domestic industry
                                                 is materially injured or threatened with material injury by imports of the
                                                 foreign merchandise. Although the statute permits the Division to apply
                                                 to appear as a party in proceedings before the ITC, the Division has not
                                                 utilized this option for many years. On occasion, the Division has
                                                 provided informal advice to the Department of Commerce on request.

                                        d.       Energy
                                                 Department of Energy Organization Act, 42 U.S.C. §§ 7101-7352. This
                                                 act provides for the organization of the Department of Energy and the
                                                 transfer of functions from other agencies to that Department. The act
                                                 determines that it is in the national interest to promote the interest of
                                                 consumers through the provision of an adequate and reliable supply of
                                                 energy at the lowest reasonable cost and to foster and assure
                                                 competition among parties engaged in the supply of energy and fuels.
                                                 The Department of Energy Organization Act established the Federal
                                                 Energy Regulatory Commission (FERC) as an independent regulatory
                                                 commission within the Department of Energy. FERC establishes rates for
                                                 the transmission and sale of electric energy and the transportation and
                                                 sale of natural gas; it also regulates gas and oil pipelines. FERC has
                                                 authority to regulate mergers and acquisitions, except for acquisitions
                                                 of voting securities of natural gas companies, under the Federal Power
                                                 Act and the Natural Gas Act.
                                                 The Division often intervenes as a competition advocate in FERC
                                                 proceedings and in other proceedings involving Department of Energy
                                                 activities.
                                                 Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2297g-4. Under
                                                 42 U.S.C. § 2135, the Department is required to advise the Nuclear
                                                 Regulatory Commission whether granting a license as proposed or
                                                 certifying a plant would create or maintain a situation consistent with
                                                 the antitrust laws. If the Department recommends a hearing, the
                                                 Department may participate as a party.
                                                 Federal Coal Leasing Amendments Act of 1976, 30 U.S.C. §§ 201-209.
                                                 Under 30 U.S.C. § 184(l)(1)-(2), the Department reviews the issuance,
                                                 renewal, or modification of Federal coal leases to ensure they are
                                                 consistent with the antitrust laws.
                                                 Outer Continental Shelf Lands Act Amendments of 1978,
                                                 43 U.S.C. §§ 1331-1356a. This act requires that the Departments of the



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                                            Interior and Energy consult with the Attorney General regarding
                                            offshore lease analysis, pipeline rights of entry, review of lease
                                            transfers, and review of regulations and plans that the Departments of
                                            the Interior and Energy formulate for offshore leasing that may affect
                                            competition in the acquisition and transfer of offshore leases.
                                            Naval Petroleum Reserves Production Act of 1976, 10 U.S.C. §§ 7420-
                                            7439. Under 10 U.S.C. § 7430(g)-(i) and 10 U.S.C. § 7431(b)(2), the
                                            Secretary of Energy must consult with and give due consideration to the
                                            views of the Attorney General prior to promulgating any rules and
                                            regulations or plans of development and amendments thereto, and
                                            prior to entering into contracts or agreements for the production or sale
                                            of petroleum from the naval petroleum and oil shale reserves. If the
                                            Attorney General advises the Secretary within the 15 days allowed for
                                            review that any proposed contract or agreement would create or
                                            maintain a situation inconsistent with the antitrust laws, then the
                                            Secretary may not enter into that arrangement. The Attorney General is
                                            also required to report on the competitive effects of any plans or
                                            substantial amendments to ongoing plans for the exploration,
                                            development, and production of naval petroleum and oil shale reserves.
                                            National Petroleum Reserves in Alaska. Under 42 U.S.C. § 6504(d) and
                                            42 U.S.C. § 6506, no contract for the exploration of the National
                                            Petroleum Reserve in Alaska may be executed by the Secretary of the
                                            Interior if the Attorney General advises the Secretary within the 30 days
                                            allowed for review that such contract would unduly restrict competition
                                            or be inconsistent with the antitrust laws. The Attorney General is also
                                            required to report on the competitive effects of any new plans or
                                            substantial amendments to ongoing plans for the exploration of the
                                            reserve. Whenever development leading to production of petroleum is
                                            authorized, the provisions of 10 U.S.C. § 7430(g)-(i) apply.
                                            Deepwater Port Act, 33 U.S.C. §§ 1501-24. The granting of deepwater
                                            port licenses, used to load and unload oil for transportation to the
                                            United States, is entrusted to the Secretary of Transportation. Before
                                            such action is taken, the Secretary must obtain the opinion of the
                                            Attorney General and the FTC as to whether the grant of the license
                                            would adversely affect competition or be otherwise inconsistent with
                                            the antitrust laws. The Secretary only needs to notify the Attorney
                                            General and FTC before amending, transferring, or renewing a license.

                                    e.      Transportation
                                            Interstate Commerce Commission Termination Act, Pub. L. No. 104-88,
                                            109 Stat. 803. This act dissolved the Interstate Commerce Commission
                                            (ICC) which, until 1976, exercised regulatory control over entry, rates,
                                            routings, classifications, intercarrier mergers, and collective ratemaking
                                            activities, which the ICC could approve and immunize from antitrust
                                            exposure. Its few remaining functions were transferred to the Surface
                                            Transportation Board within the Department of Transportation, and the



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                                                 Secretary of Transportation. Although most of the areas formerly under
                                                 the ICC’s jurisdiction are now deregulated, very limited antitrust
                                                 immunity is still available in some of these areas. See, e.g., Railroad
                                                 Revitalization and Regulatory Reform Act of 1976 (4R Act),
                                                 45 U.S.C. §§ 801-836.
                                                 Airlines. Under the Federal Aviation Act of 1958, the Civil Aeronautics
                                                 Board (CAB) exercised extensive regulatory control over entry, fares,
                                                 mergers, interlocking directorates, and agreements among air carriers
                                                 until 1978. In 1978, Congress passed the Airline Deregulation Act of
                                                 1978, Pub. L. No. 95-504, 92 Stat. 1705, which phased out CAB and
                                                 many of its functions. The Division now reviews domestic airline
                                                 mergers, acquisitions, and interlocking directorates under the antitrust
                                                 laws as it does in other industries. The Department of Transportation
                                                 approves and may grant antitrust immunity to agreements between
                                                 U.S. and foreign carriers.
                                                 Shipping Act of 1984, 46 U.S.C. app. §§ 1701-19. This act provides that
                                                 tariffs filed by international ocean shipping conferences and other
                                                 agreements among carriers engaged in international ocean shipping are
                                                 immunized from the operation of the antitrust laws if filed with the
                                                 Federal Maritime Commission.

                              3.        Statutes Relating to Joint Research and Development,
                                        Production, and Standards Development
                                                 National Cooperative Research and Production Act,
                                                 15 U.S.C. §§ 4301-06. The National Cooperative Research and
                                                 Production Act (NCRPA) clarifies the substantive application of the U.S.
                                                 antitrust laws to joint research and development (R&D) activities, joint
                                                 production activities and, since it was amended by the Standards
                                                 Development Organization Advancement Act of 2004, Pub. L. No. 108-
                                                 237, 118 Stat. 661 (2004), conduct by a qualifying standards
                                                 development organization (SDO) while engaged in a standards
                                                 development activity. Originally drafted to encourage research and
                                                 development by providing a special antitrust regime for joint R&D
                                                 ventures, the NCRPA requires U.S. courts to judge the competitive
                                                 effects of a challenged joint R&D or production venture, or standards
                                                 development activity engaged in by a qualifying SDO, in properly
                                                 defined relevant markets and under a rule-of-reason standard. The
                                                 statute specifies that the conduct “shall be judged on the basis of its
                                                 reasonableness, taking into account all relevant factors affecting
                                                 competition, including, but not limited to, effects on competition in
                                                 properly defined, relevant research, development, product, process,
                                                 and service markets.” 15 U.S.C. § 4302.
                                                 The NCRPA also establishes a voluntary procedure pursuant to which
                                                 the Attorney General and the FTC may be notified of a joint R&D or
                                                 production venture or a standards development activity engaged in by a
                                                 qualifying SDO. The statute limits the monetary relief that may be




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                                            obtained in private civil suits against the participants in a notified joint
                                            venture or against a qualifying SDO to actual rather than treble
                                            damages, if the challenged conduct is covered by the statute and within
                                            the scope of the notification. With respect to joint production ventures,
                                            the National Cooperative Production Amendments of 1993, Pub. L. No.
                                            103-42, 107 Stat. 117, 119 (1993), provide that the benefits of the
                                            limitation on recoverable damages for claims resulting from conduct
                                            within the scope of a notification are not available unless (1) the
                                            principal facilities for the production are located within the United
                                            States or its territories, and (2) “each person who controls any party to
                                            such venture (including such party itself) is a United States person, or a
                                            foreign person from a country whose law accords antitrust treatment
                                            no less favorable to United States persons than to such country’s
                                            domestic persons with respect to participation in joint ventures for
                                            production.” 15 U.S.C. § 4306 (2).
                                            The National Cooperative Production Amendments of 1993 also exclude
                                            from the act’s coverage, and thus leave subject to the ordinary
                                            applicability of the antitrust laws, using existing facilities for the
                                            production of a product, process, or service by a joint venture unless
                                            such use involves the production of a new product or technology.

                  D.       Antitrust Division Guidelines
                                            Several official sets of guidelines have been issued by the Antitrust
                                            Division. In addition to the guidelines described below, the Division also
                                            issued nonprice vertical restraint guidelines in 1985, but those
                                            guidelines no longer reflect Division policy.

                           1.       Merger Guidelines
                                            The Horizontal Merger Guidelines, issued jointly by the Division and the
                                            Federal Trade Commission (FTC) on August 19, 2010, replace the
                                            guidelines that were issued on April 2, 1992, including the revisions
                                            involving the treatment of efficiencies issued on April 8, 1997. The
                                            Horizontal Merger Guidelines are designed to outline the Division’s
                                            standards for determining whether to oppose mergers or acquisitions
                                            with a horizontal overlap under Section 7 of the Clayton Act. The Non-
                                            Horizontal Merger Guidelines from Section 4 of the 1984 Merger
                                            Guidelines remain in effect for nonhorizontal mergers (i.e., vertical
                                            mergers; mergers that eliminate potential competitors), although they
                                            do not describe the full range of potential anti-competitive effects of
                                            nonhorizontal mergers.

                           2.       Antitrust Guidelines for the Licensing of Intellectual Property
                                            The Antitrust Guidelines for the Licensing of Intellectual Property (IP
                                            Guidelines) were jointly issued by the Division and FTC on April 6, 1995.
                                            The IP Guidelines state the two agencies’ enforcement policy with
                                            respect to the licensing of intellectual property protected by patent,
                                            copyright, and trade secret law.



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                              3.        Antitrust Enforcement Guidelines for International Operations
                                                 The Antitrust Enforcement Guidelines for International Operations
                                                 (International Guidelines) were jointly issued by the Division and FTC in
                                                 April, 1995, and replaced the international guidelines issued by the
                                                 Department in 1988. The International Guidelines provide antitrust
                                                 guidance to businesses engaged in international operations on
                                                 questions that relate to the two agencies’ international enforcement
                                                 policy. The International Guidelines address such topics as subject
                                                 matter jurisdiction over conduct and entities outside the United States,
                                                 comity, mutual assistance in international antitrust enforcement, and
                                                 the effects of foreign governmental involvement on the antitrust
                                                 liability of private entities.

                              4.        Statements of Antitrust Enforcement Policy and Analytical
                                        Principles Relating to Health Care and Antitrust
                                                 The Statements of Antitrust Enforcement Policy and Analytical
                                                 Principles Relating to Health Care and Antitrust (Health Care Policy
                                                 Statements) were jointly issued by the Division and FTC on August 28,
                                                 1996. They revise policy statements jointly issued by the agencies on
                                                 September 27, 1994, which were themselves a revision and expansion
                                                 of joint policy statements issued on September 15, 1993. The Health
                                                 Care Policy Statements consist of nine statements that describe
                                                 antitrust enforcement policy with respect to various issues in the health
                                                 care industry. Most of the statements include guidance in the form of
                                                 antitrust safety zones, which describe conduct that the agencies will not
                                                 challenge under the antitrust laws, absent extraordinary circumstances.




U.S. Department of Justice, Antitrust Division                                                                                        Page II-25

				
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